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Court of Criminal Appeal 4 June 2012

JRM v R

[2012] NSWCCA 112

Sexual offences
CRIMINAL LAW SENTENCING REPRESENTATIVE OFFENCES

Citation: JRM v R [2012] NSWCCA 112
Court: NSW Court of Criminal Appeal
Date: 4 June 2012
Judges: Hoeben JA, RS Hulme J, Fullerton J

Background

The applicant was sentenced in the District Court in October 2010 for serious child sexual offences committed against his nine-year-old son, who lived with him and his wife. The offences included two counts of sexual intercourse with a child under 10 years under his authority, possessing child abuse material, using a carriage service in an offensive way, and using a child for pornographic purposes. Three further offences were taken into account on a Form 1.

The sentencing judge, Garling DCJ, noted that the first four charges were representative of a sustained course of conduct rather than isolated incidents. Online chat platforms were used to broadcast some of the conduct, and the applicant's wife was a co-offender in relation to certain counts. Following a 25% discount for the applicant's guilty plea, an effective sentence of 12 years with a non-parole period of 9 years was imposed, both commencing on 16 November 2009.

The applicant sought leave to appeal against the sentences imposed on Counts 1 and 2, the two most serious offences.

  • Whether Garling DCJ erred by taking into account irrelevant considerations when assessing the objective seriousness of Counts 1 and 2.
  • Whether Garling DCJ erred in characterising the objective seriousness of those counts as "above the mid-range" and "somewhere in the middle of the mid to high range."

Decision

The Court of Criminal Appeal found that Garling DCJ did fall into error in assessing the objective seriousness of Counts 1 and 2. The primary error was that his Honour took into account matters that were either irrelevant at that stage of the sentencing exercise or that went beyond what the individual charged offences actually reflected. Because Counts 1 and 2 were representative offences, each count had to be sentenced on the basis of what was actually charged in it, not on the full extent of the broader course of conduct, which was separately addressed through the Form 1 offences.

RS Hulme J concluded that, while the offences were individually very serious, they did not warrant the level of objective seriousness attributed to them by the sentencing judge when viewed in isolation. The sentences for Counts 1 and 2 were accordingly quashed, and the Court re-sentenced the applicant on those counts. The re-sentencing restructured the non-parole periods and introduced partial accumulation between Counts 1 and 2, where the original sentences had been concurrent.

Critically, however, the effective overall sentence was not reduced. RS Hulme J held that the offending the subject of Counts 1 and 2 merited the same effective custodial outcome that Garling DCJ had imposed. The Court also observed, without altering those sentences, that the non-parole periods imposed on Counts 3 and 5 had been very lenient, and that there was much to be said for revisiting the degree of concurrency on those counts had a reduction in the effective sentence otherwise been warranted.

Orders Made

  • Leave to appeal granted; appeal allowed.
  • Sentences imposed by Garling DCJ on Counts 1 and 2 quashed.
  • On Count 2: imprisonment for a non-parole period of 4 years commencing 16 November 2011, together with a further term of 16 months.
  • On Count 1: imprisonment for a non-parole period of 4 years commencing 16 November 2014, together with a further term of 3 years.
  • Parole eligibility date recorded as 16 November 2018.
  • Sentences for Counts 3, 4, and 5 were not disturbed.

Key Takeaways

  • Representative charges must be sentenced on the basis of what is actually charged in each count. A sentencing court errs if it inflates its assessment of objective seriousness by incorporating the full scope of a broader course of conduct beyond what the individual representative charge encompasses.
  • The Court of Criminal Appeal confirmed that errors in the assessment of objective seriousness can be established without those errors necessarily producing a reduction in the effective sentence, where the court on re-sentencing independently concludes that the overall outcome was appropriate.
  • Where sentences for multiple serious counts are restructured on appeal (for example, by moving from concurrency to partial accumulation), the effective custodial term may remain the same even if individual sentence lengths are adjusted.
  • Garling DCJ's finding of special circumstances was not disturbed, the Court of Criminal Appeal independently arriving at the same conclusion given the accumulation of sentences involved.
  • The Court observed, without making orders to that effect, that the non-parole periods on Counts 3 and 5 were very lenient, signalling that the degree of concurrency across a sentence package may be revisited when errors in one part of the sentencing exercise are corrected.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A(2), 61O(2), 61M(2), 91G, 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A et seq (standard non-parole periods)
- Criminal Appeal Act 1912 (NSW)
- Criminal Code Act 1995 (Cth), s 474.17

Cases:
- MRW v R [2011] NSWCCA 260